12 A.D. 378 | N.Y. App. Div. | 1896
By the form of the complaint, this appears to be an action to recover damages for the refusal of the defendant to transfer and deliver to the plaintiff a certain bond secured by a mortgage on property in Hew Jersey, and upon which there is due the sum of $7,500, for which amount judgment is demanded. The issue raised by the pleadings relates to the title to and the possession of that bond and mortgage. The plaintiff claims as executrix of the last will and testament of George Condit Smith, deceased, and also as the testa
By the statutes of New Jersey this mortgage is to' be regarded for all purposes as real estate. Payments were made on the bond, and in reduction of the mortgage, to George Condit Smith during his lifetime; and on the 8th of April, 1894, he made a declaration in writing, in which he stated that the infants’ interest in the bond and mortgage was $13,356.87, and that he held that bond and mortgage to that extent as guardian for the infants, and that it was a prior lien upon any amount belonging to him individually. It thus appears as matter of fact, from the declaration made by Mr. Smith himself, that his estate had no interest in this bond and mortgage which was not subordinate to the claim of the infants, and under the law of New Jersey that bond and mortgage were real estate of the infants. They were held by Mr. Smith in trust, and in no way constituted assets of his estate that would pass to his executrix for administration. Further than that, it appears in the record that Mr. George Condit Smith was the special guardian in the proceedings for the sale of the infants’ real estate, and that as to their interest
The documentary evidence in the case shows conclusively that, the defendant' is not in possession of personal property of Mr. George Condit Smith that would pass to his executrix under the terms of his will. Mr. Smith held this bond and mortgage in his representative capacity, under a will proven in Hew Jersey, and under. the authority of the Hew Jersey court, constituting him special guardian in the proceeding for-the sale of the infants’ real estate. Upon his death, anj by due authority of law that same relátionship of special guardian was conferred upon the defendant. If the-plaintiff, as testamentary guardian of the infants, is entitled to the possession of the bond and mortgage, it is a right which she must assert and have enforced1 in the court having jurisdiction of the subject-matter. . There is a statute of Hew Jersey with reference to the sale of infants’ real estate which provides that, upon an accounting of the special guardian, the chancellor may make an order directing the special guardian to pay the proceeds of the sale to the general guardian of the infant, and upon payment to the. general guardian 'of the amount in the hands of the special guardian, and the assignment of the securities held by him, in case the money has been
The proofs show that the defendant is rightfully in possession of the ’bond and mortgage; that he owes to the infants and to the Court of Chancery of New Jersey a duty, and if the plaintiff as-testamentary guardian is entitled to the bond and mortgage, she must take proceedings in the Court of Chanceiy in New Jersey to-compel the special guardian to assign the securities to her.
The judgment of the court below should be affirmed, with costs.
Van Brunt, P. J., Rumsey, Williams and Ingraham, JJ., concurred.
Judgment affirmed, with costs.